Musician NSW State Award

Musicians in New South Wales

Entertainment Industry Regulation 1990
Department of Industrial Relations and Employment.
(Entertainment Industry Act 1989)

Section 4 of the Entertainment Industry Act 1989 (the Act) contains the following definitions:

“…”entertainment industry agent” means a person who, for financial benefit caries out any one or more of the following entertainment industry activities on behalf of a performer:

(a) seeking or finding work opportunities for the performer;

(b) negotiating the terms of an agreement for, and the conditions of, a performer;

(c) finalising arrangements concerning the payment of the performer;

(d) negotiating arrangements relating to the attendance of the performer at a performance;

(e) administering the contract of the performer with an entertainment industry employer,

but does not include a person who carries out those activities solely as an employee of any such agent …. “entertainment industry employer” means a person who employs any performer for the purpose of a performance …. “manager” means a person (whether called a personal representative or a personal manager, or otherwise) who, for financial benefit, represents a performer and who agrees, pursuant to a written agreement, to carry out or arrange to be carried out any or all of the activities of an entertainment industry agent and other additional activities or duties specified in the agreement on behalf of the performer, but does not include a person who carries out those activities or duties solely as an employee of any such manager;… “venue consultant” means a person who acts on behalf of an entertainment industry employer, for a fee or remuneration paid by any such employer, and who arranges for a performance by a performer at a particular venue, but does not include a person who arranges for a performance solely as an employee of a venue consultant or an employer.”
CLARIFICATION
1. Only entertainment industry agents or managers, who represent performers in a contract or transaction, may claim payment by way of a percentage commission from the performer. The maximum penalty for contravention is $2,500.00.

2. If two or more “entertainment industry agents” are involved in the one contract or transaction, the combined fee charged to the performer may not exceed 10%. The maximum penalty for contravention is $2,500.00

3. If a person acts on behalf of the employer in a contract or transaction, the person is a “venue consultant” for the purposes of the Act, and will not be entitled to claim any fee or remuneration from the performer. If a person acts as both an entertainment industry agent and a venue consultant, that person may only receive a venue consultant’s fee. The account or invoice given to the entertainment industry employer must itemise the fee for the venue consultant separately from the performer’s fee. The fee for the venue consultant may not be included in the performer’s fee, and then presented to the employer as a total or gross figure. The penalty for failure to comply is $2,500.00.

4. A promoter or entertainment industry employer is the person who is the end user of the performance, and who is exposed to some financial risk.

5. An entertainment industry agent, manager or venue consultant does not become a promoter by “buying” a performer/performance, and on-selling it to a venue or venue operator for a fixed fee. This remains the function of an entertainment industry agent, manager or venue consultant and the provisions of the Act relating to fees apply.

6. The Act and the licensing provisions apply across all of the entertainment industry and apply to performances in hotels, clubs, theatre, function centres, international hotels and at corporate and other private functions etc. The Act applies to all persons who book and arrange a performance(s) by a performer(s) including event companies,speakers bureaux and public relations consultants. As set out in section 55 of the Act, “no stipulation …. or agreement made or entered into … operates to annul, vary or exclude any of the provisions of the Act or the regulations”

FEES TO ENTERTAINMENT INDUSTRY REPRESENTATIVES
5. (1) For the purposes of section 38 (1) and (4) of the Act, the following percentages are prescribed:

(a) in the case of an engagement involving film, television or electronic media – 10 per cent;

(b) in the case of an engagement involving live theatre or a live musical or variety performance (being an engagement that does not involve film, television or electronic media) – 10 per cent for any period up to 5 weeks and then 5 per cent for any period after 5 weeks;

(c) in all other cases – 10 per cent.

(2) The following amounts (being amounts payable to performers) are to be excluded when calculating the percentage of fees or other remuneration that an entertainment industry agent or a manager may demand or receive for or in respect of the engagement of a performer:

(a) travelling and meal allowances;

(b) holiday pay

(c) any long service leave and superannuation payments;

(d) any overtime or penalty payments which are paid on an irregular basis;

(e) any award or minimum payments in respect of rehearsals.

TRUST ACCOUNTS
Money received on behalf of a performer by an entertainment industry agent or a manager which is not paid to the performer immediately must – * be paid to the credit of a general trust account at a bank in New South Wales and be held in accordance with the regulations; and * be disbursed as directed by the performer within such time as may be determined by the Council (but not exceeding 14 days) after the performer becomes entitled to receive the money.

A trust account under this section must be kept exclusively for the purpose of money received on behalf of a performer.

ACCOUNTING RECORDS
An entertainment industry agent or manager must keep accounting records in respect of money received on behalf of a performer. Such accounting records must: * disclose at all times the true position concerning the money received; and * be kept at the principal place of business of the entertainment industry agent or manager.

6. (1) An entertainment industry agent or a manager who is required to keep accounting records in respect of money received on behalf of a performer must, in relation to an engagement in respect of which the performer has been paid, give the accounting records specified in subclause (2) as soon as practicable to the following persons:

(a) the performer;

(b) any other entertainment industry representative who has represented or carried out activities on behalf of the performer for or in respect of the engagement for which the performer has been paid.

(2) The accounting records to be given are:

(a) a statement of the amount received by the agent or manager on behalf of the performer; and

(b) a statement of the amount paid to the performer for the engagement.

(3) The entertainment industry agent or manager who has received the money on behalf of the performer must also give, as soon as practicable, a statement of the amount of money received by the agent or manager to the entertainment industry employer (or other person) who has paid the performer for the engagement.

AWARDS
AHA Hotels and members of TPEA are covered by Federal Awards. ALL remaining NSW venues come under the Musicians’ (State) Award. Copies of Federal Awards are available from the Registrar, Industrial Relations Commission 80 William Street East Sydney. State Awards are available at the Department of Industrial Relations, 1 Oxford St, Darlinghurst.

CANCELLATIONS
State Award provides for fourteen days notice of cancellation for casual engagements. Federal Awards are forty eight hours. Longer periods are common in contracts but the above applies where no extra provision is made.

BREAKS
Under the State award musicians are entitled to a minimum of 15 minutes per hour.

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